The opinion of the court was delivered by: Rovner, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs consist of numerous suburban municipal entities
surrounding O'Hare International Airport ("O'Hare"), the Suburban
O'Hare Commission, an organization of Illinois municipal
corporations created in 1982 for the purpose of protecting its
members and their citizenry from environmental damage caused by
O'Hare, and Lawrence C. Bieneman, a private citizen of one of the
plaintiff villages.*fn1 The defendants are various officials and
employees connected with the Federal Aviation Administration
("FAA"), the Department of Transportation, and the City of
Chicago and Chicago itself as a municipal corporation ("City
defendants"). In its complaint, filed in this Court on December
4, 1984, Suburban O'Hare challenges an adjudicatory decision of
the FAA rendered on November 14, 1984 by which the FAA approved
Chicago's 20-year "Master Plan" for the construction and
operation of commercial air carrier facilities for the
metropolitan Chicago area to meet long-term aircraft operations
demand at air carrier airports. The FAA not only approved the
expansion of aircraft operations at O'Hare, but also rejected
other
alternatives to handle the 20-year demand which would not
increase operations at O'Hare.*fn2
Suburban O'Hare's complaint consists of 78 pages, 188
enumerated paragraphs, and 6 exhibits, some of which are lengthy
in themselves. Although a detailed explanation of the complaint
is not necessary for purposes of this Opinion, some discussion of
the history and background of this case, as alleged by plaintiffs
in their complaint, is helpful to an understanding of its present
procedural posture.
The FAA's November 14, 1984 decision was the culmination of a
dispute that began many years before and resulted, in part, from
the procedural decision-making framework created by a Consent
Decree entered by Judge Stanley J. Roszkowski of the United
States District Court for the Northern District of Illinois on
October 14, 1982 in the case of State of Illinois ex rel. Scott
v. Butterfield, No. 74 C 2410 ("Illinois v. Butterfield
litigation"). According to the complaint, for many years the
mayors and city councils of the plaintiff communities had asked
for reduction in the noise and air pollution emanating from
O'Hare. Suburban O'Hare alleges that instead of addressing these
problems, the City defendants and the FAA had been following a
piecemeal approach to the physical development of O'Hare which
led to the ever-increasing expansion of O'Hare's capacity to
accommodate flight operations far beyond its original design.
Because the FAA awarded financial grants to Chicago for the
construction of individual projects without examining the
long-term expansion program as a whole, frequently after the
projects had already been built, the issue of how best to meet
long term aviation growth was ignored.
To stop this piecemeal expansion of O'Hare, the State of
Illinois and several of the plaintiffs in this case brought the
Illinois v. Butterfield litigation, seeking disclosure of the
City of Chicago's and the FAA's long-term aviation goals and a
comprehensive exploration of alternatives to O'Hare expansion.
The plaintiffs sought declaratory and injunctive relief under the
National Environmental Policy Act, under the Administrative
Procedure Act, and under various other federal statutes, to stop
the expansion of O'Hare and the allegedly uncontrolled increase
in aircraft operations, and noise and air pollution resulting
therefrom. In addition to examining the alternatives to meet the
long-term aviation operations demand for the Chicago metropolitan
area, the plaintiffs wanted the FAA to select an alternative to
meet the demand which did not involve the ever-increasing
expansion of O'Hare.
The Consent Decree entered in the Illinois v. Butterfield
litigation created a procedural framework for such comprehensive
decision-making. According to Suburban O'Hare, in 1982 Chicago
had proposed a massive construction program at O'Hare pursuant to
an FAA sponsored "Master Plan." That Master Plan program involved
the construction of hundreds of individual projects, and Chicago
was ready to proceed with a number of these projects, designated
as Phase I projects. Illinois and the plaintiff municipal
entities in the Illinois v. Butterfield litigation were prepared
to try to stop construction on Phase I projects by seeking
injunctive relief. The Consent Decree thus resulted from an
attempt to resolve competing interests: Phase I construction
could proceed in return for the promise of the FAA and Chicago
that all other construction proposed by the Master Plan, now
called "Phase II" construction, would not commence until the FAA
made a substantive decision to approve or disapprove the entire
Master Plan proposal for
meeting the 20-year metropolitan aircraft operations demand.
The Consent Decree itself provides in relevant part: that
"[a]ll future development at O'Hare will comply with all then
applicable requirements of Federal and State of Illinois laws
requiring environmental analysis and processing" (Consent Decree,
¶ 1a); that construction of certain projects would not proceed
until an Environmental Impact Statement was completed (Consent
Decree, ¶ 1d); and that "the entire Master Plan development for
O'Hare . . . will be presented to the FAA for Airport Layout Plan
approval and the related environmental review, as a single,
comprehensive submission" (Consent Decree, ¶ 1f).
The Airport Layout Plan ("ALP") is the final product of the
Master Plan process and is based on the various facilities
developed in the Master Plan to meet the 20 year long-term
aircraft operations demand of the Chicago metropolitan area. A
Final Environmental Impact Statement ("FEIS") based on the
requirements of the National Environmental Policy Act, 42 U.S.C. § 4321,
et seq. ("NEPA"), accompanied the ALP, which was
submitted by Chicago to the FAA in April 9, 1984. On May 31,
1984, the FAA approved the FEIS. The FAA described the issue in
its Record of Decision reflecting the approval of the ALP as
follows:
The issue is whether to approve the Airport Layout
Plan submitted by the City of Chicago. Approval of it
would allow the City to proceed with implementing the
proposed development at the airport and to request
Federal funds for eligible items of development. Not
approving it would prevent the City from proceeding
with the development in a timely manner.
(Complaint, Exhibit 4 at p. 2.) On November 14, 1984, the FAA
approved the ALP as the final product of Chicago's Master Plan.
In the Record of Decision, the FAA specifically disavowed
approval of the ALP for federal funding purposes:
Approval of the Airport Layout Plan does not
represent approval as far as necessity for the
development is concerned nor is it a commitment of
Federal funds for any future development. It
signifies a concurrence for planning purposes based
on review of conformance with current standards for
safety, utility, and efficiency.
(Complaint, Exhibit 4 at p. 2.)
On December 4, 1984, Suburban O'Hare filed its complaint in
this Court, together with a motion for a temporary restraining
order and for a preliminary injunction, supported by extensive
affidavits.*fn3 The Complaint, although lengthy, is in two counts.
In Count I, Suburban O'Hare asserts that the FAA and the City
defendants, in approving the ALP in the November 14, 1984
decision, violated the "letter and the spirit" of the Consent
Decree; NEPA; the Airport and Airway Improvement Act of 1982,
42 U.S.C. § 2201, et seq. ("AAIA"); Section 176(c) of the Clean Air
Act; and plaintiffs' "constitutional right to full disclosure of
all relevant data, calculations and methodology." (Complaint, ¶
172.) Suburban O'Hare alleges that it has a claim for relief in
Count I both to enforce the Consent Decree and under the
Administrative Procedure Act, 5 U.S.C. § 702, 706. (Complaint,
¶¶ 173, 175.) Suburban O'Hare prays that this Court declare that
the November 14, 1984 FAA decision approving the Master Plan is
"null, void and of no force and effect . . ." and that this Court
enjoin the defendants "from taking any steps in reliance" on that
decision.*fn4
Finally, on January 14, 1984, Suburban O'Hare filed a Petition
for Review in the United States Court of Appeals for the Seventh
Circuit, in accordance with 49 U.S.C. § 1486(a), which is
presently pending. Therefore, the dismissal by this Court of
Suburban O'Hare's complaint for lack of subject matter
jurisdiction does not affect Suburban O'Hare's substantive right
to judicial review of the FAA's November 14, 1984 decision: such
review must be sought in the first instance in the Court of
Appeals. This Court's holding thus allows the Seventh Circuit to
examine the jurisdictional issue at the inception of this case,
thereby avoiding the potential waste of time, effort, and expense
to both the parties and the judiciary of litigating the case to
final judgment in the district court only to have that judgment
reversed ultimately for lack of subject matter jurisdiction.
I. Exclusive Jurisdiction Vests In The Court of Appeals to Review
FAA "Orders" Under Section 1486.
In its complaint, Suburban O'Hare seeks to set aside the
November 14, 1984 decision of the FAA that approved the Master
Plan and the ALP for O'Hare submitted by the City defendants. In
addition to approving the ALP, that decision also made several
other determinations under various FAA regulations promulgated
under various sections of the Federal Aviation Act in Title 49 of
the United States Code. The decision itself reflects that the FAA
conducted its review pursuant to Parts 77, 152, and 157 of the
FAA regulations, found in 14 C.F.R., respectively relating to:
(1) obstruction evaluations for flight operations; (2) the
federal airport aid program; and (3) notice requirements for
airport construction or alteration. (Record of Decision,
Complaint, Exhibit 4 at p. 19.) The FAA also granted exemptions
pursuant to Part 139 of 14 C.F.R.
In addition to authority under the Consent Decree, the FAA's
review pursuant to Parts 77, 157, and 139 of 14 C.F.R. clearly
was conducted pursuant to authority vested in the FAA under
Chapter 20 of Title 49; the FAA's review pursuant to Part 152 of
14 C.F.R. was conducted pursuant to authority under Chapter 31 of
Title 49. The primary issue in this case is whether jurisdiction
to review the FAA's November 14, 1984 decision vests in the
district court or in the Court of Appeals.*fn6
Contrary to the suggestion of the FAA, this issue is not
simple. Courts have encountered substantial difficulty in
determining when a challenged administrative action falls within
the scope of a statute directing exclusive review in the Court of
Appeals. No less an authority than Professor Kenneth Culp Davis
has stated that the law governing the jurisdiction for review of
challenged agency action "is both inordinately complex and
extremely confused." K. Davis, Administrative Law Treatise §
23.03-1, at 372 (Supp. 1982). This complexity and confusion has
spawned a number of law review articles. See, e.g., Comment, The
Forum for Judicial Review of Administrative Action: Interpreting
Special Review Statutes, 63 B.U.L.Rev. 765 (1983); Currie and
Goodman, Judicial Review of Federal Administrative Action: Quest
for the Optimum Forum, 75 Colum.L.Rev. 1 (1975); Note,
Jurisdiction to Review Federal Administrative Action: District
Court or Court of Appeals, 88 Harv.L.Rev. 980 (1975).
Despite the abundance of case law and scholarly commentary on
the issue generally, the law is well settled that exclusive
jurisdiction vests in the Court of Appeals to review all final
orders of the FAA made under Chapter 20 of Title 49. Title
49 U.S.C. § 1486(a) provides:
(a) Any order, affirmative or negative, issued by the
Board or Administrator under this chapter, except any
order in respect of any foreign air carrier subject
to the approval of the President as provided in
section 1461 of this title, shall be subject to
review by the court of appeals of the United States
or the United States Court of Appeals for the
District of Columbia upon petition, filed within
sixty days after the entry of such order, by any
person disclosing a substantial interest in such
order. After the expiration of said sixty days a
petition may be filed only by leave of court upon a
showing of reasonable grounds for failure to file the
petition theretofore.
(Emphasis supplied.) Section 1486(d) states that the court "shall
have exclusive jurisdiction to affirm, modify or set aside the
order. . . ."
In Gaunce v. deVincentis, 708 F.2d 1290 (7th Cir. 1983), cert.
denied, ___ U.S. ___, 104 S.Ct. 417, 78 L.Ed.2d 354 (1983), the
Seventh Circuit dismissed sua sponte an appeal from a district
court judgment granting the defendants' motion for summary
judgment. An airman claimed that the FAA violated her rights to
procedural due process in revoking her airman's certificate. The
FAA revoked the airman's certificate under its authority pursuant
to Chapter 20 of Title 49. The Seventh Circuit held that Section
1486 expressly provides that any challenge to an FAA decision
made under Chapter 20 can be brought only in the Court of
Appeals, and dismissed the case for lack of subject matter
jurisdiction in the district court:
And most importantly, in plain disregard of the
express terms of section 1486 of the Act, which
prescribes direct and exclusive review in the court
of appeals, plaintiff instituted the present action
in the district court. This action is in derogation
of the well settled principle that collateral attacks
upon administrative orders are not permissible. Myers
v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48-50,
58 S.Ct. 459, 462-463, 82 L.Ed. 638 (1938); Robinson
v. Dow, 522 F.2d 855, 858 (6th Cir. 1975); Oling v.
Air Line Pilots Ass'n., 346 F.2d [270] at 276-277
[(7th Cir. 1965)]; see Administrative Procedure Act §
10(b), 5 U.S.C. § 703 (1976) ("The form of proceeding
for judicial review is the special statutory review
proceeding relevant to the subject matter in a court
specified by statute or, in the absence or inadequacy
thereof, any applicable form of legal action . . . in
a court of competent jurisdiction."); see also
Denberg v. United States Railroad Retirement Board,
696 F.2d 1193 (7th Cir. 1983). It is clear from the
statutory scheme established by Congress that the
F.A.A. order was not subject to collateral attack in
the district court. Robinson v. Dow, supra; Oling v.
Air Line Pilots Ass'n., supra. Thus the district
court lacked subject matter jurisdiction over the
claims asserted by plaintiff-appellant.
Thus, if the November 14, 1984 decision of the FAA was made
solely under Chapter 20 of Title 49, subject matter jurisdiction
to review that decision clearly vests only in the Court of
Appeals under Section 1486. Suburban O'Hare sets forth three
principal arguments to support its contention that the November
14, 1984 decision must be reviewed in the district court. First,
Suburban O'Hare contends that the decision was made not under
Chapter 20 of Title 49, but under Chapter 31 of Title 49, the
federal airport aid statute. Accordingly, Section 1486, which
applies only to FAA orders made under Chapter 20, does not vest
exclusive jurisdiction to review the decision in the Court of
Appeals. Closely tied to this argument is Suburban O'Hare's
assertion that the district court clearly has subject matter
jurisdiction to hear Suburban O'Hare's claim that the defendants
violated the Consent Decree in the Illinois v. Butterfield
litigation. Finally, Suburban O'Hare contends that even if the
November 14, 1984 decision was made pursuant to Chapter 20 of
Title 49, the decision does not constitute an "order" reviewable
exclusively in the Court of Appeals under Section 1486 because
the FAA administrative record is either ...